Case: 19-40062      Document: 00515179583         Page: 1    Date Filed: 10/30/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                    No. 19-40062
                                                                           FILED
                                                                    October 30, 2019
                                  Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk

JING GAO; ALVIN RABSATT; BARRY NIXON; PATRICIA NIXON;
MADISON LOWE; IOLANDA LOWE; KATHERINE PIERCE,

              Plaintiffs-Appellants,

v.

BLUE RIDGE LANDFILL TX, L.P.,

              Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:16-CV-323


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Plaintiffs live near a landfill in Pearland, Texas. They brought a putative
class-action lawsuit against Blue Ridge Landfill TX, L.P. (“Blue Ridge”). They
invoked the federal courts’ diversity jurisdiction and argued Blue Ridge
constituted a nuisance. After losing at summary judgment, Plaintiffs appealed.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-40062
      Jurisdiction. Plaintiffs now argue the federal courts have no subject-
matter jurisdiction because there is not complete diversity of citizenship
between the parties. That argument is based solely on Blue Ridge’s Answer to
the complaint. In its Answer, Blue Ridge denied sufficient knowledge to know
whether complete diversity exists and “admit[ted] that it is located at 2200 FM
521 Rd, in Fresno, Texas.” ROA.44, 46. Plaintiffs claim the Answer
conclusively establishes that Blue Ridge is a Texas citizen. If true, that would
deprive the court of diversity jurisdiction because Plaintiffs also are Texas
citizens.
      Federal courts have an obligation to assess their jurisdiction
independent of the parties’ assertions. See MidCap Media Finance, L.L.C. v.
Pathway Data, Inc., 

, 313 (5th Cir. 2019). Blue Ridge is a limited
partnership, which means that it is “a citizen of the State where it has its
principal place of business and the State under whose laws it is organized.” 28
U.S.C. § 1332(d)(10). The Supreme Court has held that a business’s principal
place of business is its “nerve center,” which is normally where its
headquarters is located, “provided that the headquarters is the actual center
of direction, control, and coordination” of its activities. Hertz Corp. v. Friend,

, 93 (2010).
      Blue Ridge is organized under the laws of Delaware. It operates a landfill
in Texas, but that fact alone does not make Texas its principal place of
business. Blue Ridge filed a motion for leave to amend its Answer to admit to
Plaintiffs’ allegation that Phoenix is its principal place of business. That
motion also contains tax filings to demonstrate that Blue Ridge’s “nerve center”
is in Phoenix. We are satisfied that Blue Ridge is a citizen of Delaware and
Phoenix. And Plaintiffs are citizens of Texas. Therefore, complete diversity
exists.


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                                  No. 19-40062
      Merits. Plaintiffs first argue that Blue Ridge is not a “permanent
nuisance” under Texas law. We review de novo the district court’s grant of
summary judgment to Blue Ridge, taking the facts in the light most favorable
to Plaintiffs. See Morrow v. Meachum, 

, 874 (5th Cir. 2019).
      Texas law classifies nuisances as either permanent or temporary. See
Schneider Nat’l Carriers, Inc. v. Bates, 

, 270 (Tex. 2004). This
classification has consequences for the statute-of-limitations analysis. “A
permanent nuisance claim accrues when injury first occurs or is discovered; a
temporary nuisance claim accrues anew upon each injury.” 

nuisance may be established by showing that either the
plaintiff ’s injuries or the defendant’s operations are permanent.” 

“In
most nuisance cases, a permanent source will result in permanent
interference.” 

of a connection between the two can be
rebutted by evidence that a defendant’s noxious operations cause injury only
under circumstances so rare that, even when they occur, it remains uncertain
whether or to what degree they may ever occur again.” 

Ridge landfill has been in operation since 1992—roughly a
decade before Plaintiffs’ homes were constructed. ROA.590. In a survey
conducted by Plaintiffs’ counsel, numerous residents who lived in the affected
area for a decade or more reported experiencing odors continuously ever since
they moved to the neighborhood. ROA.660, 662, 667, 669, 675. So both
Plaintiffs’ injuries and the landfill’s operations are permanent, creating a
presumption of a permanent nuisance. Having reviewed all the evidence in the
light most favorable to Plaintiffs, we see nothing indicating that the odors are
so rare that it is uncertain whether or to what degree they may ever occur
again. Thus, the presumption of a permanent nuisance is unrebutted.
      Plaintiffs next argue their claims are not time-barred. The statute of
limitations for nuisance claims in Texas is two years. TEX. CIV. PRAC. & REM.
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                                  No. 19-40062
CODE § 16.003(a). Because the landfill is a permanent nuisance, Plaintiffs’
nuisance claims accrued “when the injury first occur[ed] or [was] discovered.”

.
      This lawsuit was filed on November 17, 2016. Therefore, the statute of
limitations bars claims for permanent nuisances that first occurred or were
discovered before November 17, 2014. As we have already discussed, residents
in the Plaintiffs’ neighborhood have been experiencing foul odors from the
landfill for at least a decade. Named Plaintiff Iolanda Lowe herself testified
that in 2007, someone in her neighborhood went door to door with a petition
regarding the landfill’s odors. ROA.615–16. Even construing the evidence in
the light most favorable to Plaintiffs, we agree with the district court that
Plaintiffs’ claims are barred by the statute of limitations.
      Finally, we have reviewed Plaintiffs’ untimely supplemental brief and
evidence concerning the worsening of the odors in 2015. Nothing in those
filings changes our conclusion, so we need not decide whether the district court
erred in excluding them. See Knight v. Kirby Inland Marine Inc., 

,
355 (5th Cir. 2007).
                                  *     *      *
      The district court’s judgment is AFFIRMED. Defendant’s motion to
amend is GRANTED.




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